Shedrick Jermaine Thorton v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 12, 2022
• Docket: 05-22-00189-CR
• Status: Published

Opinion

DISMISS and Opinion Filed April 12, 2022

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-22-00189-CR

SHEDRICK JERMAINE THORTON, Appellant V. THE STATE OF TEXAS, Appellee

On Appeal from the Criminal District Court No. 1 Dallas County, Texas Trial Court Cause No. F14-76804-H

MEMORANDUM OPINION Before Justices Molberg, Reichek, and Garcia Opinion by Justice Garcia On March 8, 2022, Shedrick Jermaine Thorton filed his notice of appeal in

this case. Three weeks later, the State filed a motion to dismiss, contending that the

notice of appeal was untimely. After reviewing the clerk’s record, the reporter’s

record, and the State’s motion, we will grant the motion and dismiss this appeal.

In August of 2015, appellant was charged with violation of a protective order

or bond condition – assault stalking. On January 12, 2017, after appellant pleaded

guilty, the trial court found him guilty and assessed punishment at ten years,

probated for ten years; the trial court’s judgment states that appellant’s probated

sentence was to “start after [his six-year] sentence in #F14-76803-H has been discharged.” On September 11, 2019, appellant filed a notice of appeal in the trial

court.1 On February 9, 2022, after he was released in trial court cause #F14-76803-

H, the trial court set the conditions of his probation in this case. Five days later, the

trial court modified the conditions of his probation to include electronic monitoring.

Appellant then filed a notice of appeal with this Court, seeking to challenge “the trial

court’s decision to enforce a 10 year probation sentence, that was ordered against

him on January 12, 2017.”

“Jurisdiction concerns the power of a court to hear and determine a case.”

Olivo v. State, 918 S.W.2d 519, 522 (Tex. Crim. App. 1996). The jurisdiction of an

appellate court must be legally invoked; if not, the power of the court to act is as

absent as if it did not exist. See id. at 523. “The standard to determine whether an

appellate court has jurisdiction to hear and determine a case ‘is not whether the

appeal is precluded by law, but whether the appeal is authorized by law.’” Blanton

v. State, 369 S.W.3d 894, 902 (Tex. Crim. App. 2012) (quoting Abbott v. State, 271

S.W.3d 694, 696–97 (Tex. Crim. App. 2008)). The right to appeal in a criminal case

is a statutorily created right. See McKinney v. State, 207 S.W.3d 366, 374 (Tex.

Crim. App. 2006); Griffin v. State, 145 S.W.3d 645, 646 (Tex. Crim. App. 2004).

See also TEX. CODE CRIM. PROC. ANN. art. 44.02 (providing right of appeal for

defendant); TEX. R. APP. P. 25.2(a)(2) (rules for appeal by defendant).

1 For reasons that are unclear, the 2019 notice of appeal was not forwarded to this Court until the clerk’s record in this appeal was filed on April 8, 2022. –2– A timely-filed notice of appeal vests the courts of appeals with jurisdiction.

Olivo, 918 S.W.2d at 522. Absent a timely filed motion for new trial, appellant’s

notice of appeal was due by February 13, 2017. See TEX. R. APP. P. 26.2(a)(2). To

obtain the benefit of the extension period provided by rule 26.3, appellant had to file

his notice of appeal in the trial court and an extension motion in this Court by

February 27, 2017. See TEX. R. APP. P. 26.3; Slaton v. State, 981 S.W.2d 208, 210

(Tex. Crim. App. 1998) (per curiam); Olivo, 918 S.W.2d at 522. The notice of appeal

filed in this Court shows it was prepared and postmarked on March 4, 2022. Even if

we were to consider his September 11, 2019 notice of appeal, that notice is also

untimely. Because appellant’s notice of appeal is untimely, we lack jurisdiction over

the appeal. See Slaton, 981 S.W.2d at 210; Olivo, 918 S.W.2d at 523.

We dismiss this appeal.

/Dennise Garcia/ DENNISE GARCIA Do Not Publish JUSTICE TEX. R. APP. P. 47.2(b) 220189F.U05

–3– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

SHEDRICK JERMAINE On Appeal from the Criminal District THORTON, Appellant Court No. 1, Dallas County, Texas Trial Court Cause No. F14-76804-H. No. 05-22-00189-CR V. Opinion delivered by Justice Garcia. Justices Molberg and Reichek THE STATE OF TEXAS, Appellee participating.

Based on the Court’s opinion of this date, we DISMISS this appeal for lack of jurisdiction.

Judgment entered April 12, 2022

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